Holding

Non‑disclosure of the earlier suit and its withdrawal without liberty to re‑file is a material fact whose suppression constitutes fraud, warranting dismissal of the suit for specific performance.

Summary

The plaintiff filed a suit for specific performance of an alleged 1993 agreement to sell land, after an earlier suit for declaration was withdrawn without liberty to re‑file. The plaintiff’s plaint stated that no litigation was pending concerning the agreement, while the earlier suit and its withdrawal were not disclosed. The trial court held that the non‑disclosure of the earlier suit was a material fact, amounting to fraud, and dismissed the suit under Order VII Rule 1(j) of the CPC. The appellate court reversed this decision, and the High Court upheld the reversal. The Supreme Court allowed the appeal, held that the earlier suit and its withdrawal were material facts whose suppression vitiated the plaintiff’s case, and reinstated the trial court’s dismissal, quashing the appellate and High Court judgments.

Issues considered

The earlier suit and its withdrawal constitute a material fact that must be disclosed in the plaint.
Whether suppression of such material fact amounts to fraud sufficient to deny discretionary relief.
Whether the plaintiff’s claim for specific performance can stand despite non‑disclosure of prior litigation.

Legislation cited

Code of Civil Procedure, 1908s. Order VII Rule 1(j), s. Order XLI Rule 27

Subjects

suppression of material factfraudspecific performanceCivil Procedure CodeOrder VII Rule 1(j)clean hands doctrinediscretionary jurisdictionnon‑disclosureappealjudgment set aside

Judgment

[2022] 12 S.C.R. 31 31

YASHODA (ALIAS SODHAN) A
v.
SUKHWINDER SINGH AND OTHERS
(Civil Appeal No. 8247 of 2009)
SEPTEMBER 12, 2022 B
[B. R. GAVAI AND C. T. RAVIKUMAR, JJ.]
Suit: Suppression of material fact – Dismissal of the previous
suit as withdrawn without liberty and this fact not presented before
the Court in a subsequent suit – Effect of – On facts, plaintiff initially
C
filed a suit for declaration against the appellant/defendant which
came to be dismissed as withdrawn – Thereafter, the plaintiff filed
suit for specific performance on the basis of alleged agreement to
sell without disclosing the fact of earlier suit – Trial court dismissed
the suit on the ground that the past litigation has direct bearing on
the merits of the present controversy and the plaintiff was bound to D
plead the same – Aggrieved, respondents-legal representatives of
the plaintiff filed an appeal which was allowed, as also upheld by
the High Court – On appeal, held: ‘Material fact’ would mean
material for the purpose of determination of the lis – On facts, filing
of the earlier suit and withdrawal thereof without liberty to file
E
another suit was a material fact – Respondents/plaintiffs failed to
approach the court with clean hands – Statement in the plaint
regarding the earlier suit was made as a trickery so as to obtain the
judgment by misleading the Court – Thus, the appellate court has
grossly erred in reversing the judgment and decree of the trial court
– Further, there is total non-application of mind, by the High Court F
as it did not refer to the grounds raised in appeal with regards to
the effect of non-disclosure of filing and withdrawal of the earlier
suit – Thus, the judgment passed by the appellate court as also the
High Court, quashed and set aside and that of the trial court is
upheld.
G
Allowing the appeal, the Court
HELD: 1.1 The present suit bases its claim only on the
agreement to sell. Leave aside there being any reference to the
earlier suit, the plaintiff baldly stated that there was no litigation
pending or decided between the parties with regard to the H
31
32 SUPREME COURT REPORTS [2022] 12 S.C.R.

A agreement in question. No doubt that it is sought to be argued by
the counsel for the respondents- plaintiffs that the statement in
the plaint is only with regard to the litigation with respect to the
agreement in question. It is stated that the said paragraph does
not mention litigation with regard to the land in question and as
such, there is no suppression of material fact. [Para 16][40-A-C]
B
1.2 After the appellant--defendant took objection with regard
to the earlier suit being withdrawn, the plaintiff came with the
replication application wherein, for the first time, he came up
with a story that the earlier suit was filed only to save the stamp
duty and registration fee and since the appellant-defendant
C became dishonest later on, the plaintiff withdrew the suit. It is
thus clear that the replication was filed as an after-thought only
to cure the lacuna as pointed out in the written statement. The
trial court found that a person cannot be permitted to assume
inconsistent positions in the court of law to play fast and loose
D and to blow hot and cold. The trial court also found that the
explanation submitted by the plaintiff with regard to the
circumstances under which the earlier suit was filed, speaks
volumes of the dishonest intention of the plaintiff. The trial court
also found that the plaintiff has made an attempt to defraud the
State of its revenue. The trial court found that the past litigation
E has a direct bearing on the merits of the present controversy. It
observed that the plaintiff was duty bound to plead the same in
the plaint. The trial court found that under Order VII Rule 1 (j) of
the CPC (as applicable in Punjab), the statement with regard to
earlier litigation has to be made in the plaint. The trial court
F therefore dismissed the suit, though it had answered the other
issues in favour of the respondents-plaintiffs. [Para 18][41-A-E]
1.3 This well-reasoned judgment of the trial court came to
be reversed by the appellate court. Accepting the explanation of
the respondents-plaintiffs in replication that the earlier suit was
G filed in order to save the registration fee and the stamp duty, the
appellate court held that the non- disclosure of the plaintiff about
earlier litigation in the plaint but clarifying it later in the
replication, was not such a crucial point on the basis of which he
could be non--suited in toto. [Para 20][42-A-C]

H
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 33
OTHERS

1.4 It could be seen that there is total non- application of A
mind by the High Court. The High Court did not even care to
refer to the grounds raised in the appeal with regard to the effect
of non--disclosure of filing and withdrawal of the earlier suit. The
High Court dismissed the suit on the basis that it arises out of
the concurrent findings of fact and no question of law is involved.
B
[Para 22][42-D-F]
1.5 There is an essential distinction between mistake and
trickery. In the instant case, it is sought to be argued on behalf of
the respondents--plaintiffs that the averment in the plaint was
with regard to a lis on the basis of the agreement. It is submitted
that the earlier suit was not based on the agreement and as such, C
there was no suppression. The submission is unsustainable. Such
a statement was made as a trickery so as to obtain the judgment
by misleading the court. [Para 25][45-B-C]
1.6 The appellate court grossly erred in reversing the
judgment and decree of the trial court which had dismissed the D
suit taking into consideration the conduct of the respondents-
plaintiffs. [Para 27][47-D-E]
1.7 What would be a ‘material fact’ would depend upon the
facts and circumstances of each case. ‘Material fact’ would mean
material for the purpose of determination of the lis. A person E
invoking the discretionary jurisdiction of the court cannot be
allowed to approach it with a pair of dirty hands. In the instant
case, filing of the earlier suit and withdrawal thereof without
liberty to file another suit was a material fact. Undisputedly, the
respondents-plaintiffs had failed to approach the court with clean F
hands. [Para 29][48-A-C]
1.8 The appellate court grossly erred in reversing the well-
reasoned judgment and decree of the trial court. The judgment
of the High Court is passed without application of mind. The High
Court has gone on a premise that the trial court had decreed the G
suit and the appellate court has dismissed the appeal. This is
factually erroneous. Thus, the judgment and decree passed by
the appellate court and the judgment passed by the High Court
are quashed and set aside. The judgment and decree passed by

H
34 SUPREME COURT REPORTS [2022] 12 S.C.R.

A the trial court in the Suit thereby dismissing the suit of the
respondents- plaintiffs is upheld. [Para 33, 34][49-A-D]
Arunima Baruah v. Union of India and Others (2007) 6
SCC 120 : [2007] 5 SCR 904; Harjas Rai Makhija
(Dead) Through Legal Representatives v. Pushparani
B Jain and Another (2017) 2 SCC 797 : [2017] 1 SCR 1;
Union of India v. M/s Chaturbhai M. Patel and Co.
(1976) 1 SCC 747 : [1976] 2 SCR 902; Svenska
Handelsbanken v. M/s Indian Charge Chrome and
Others (1994) 1 SCC 502 : [1993] 3 Suppl. SCR 323 –
held inapplicable.
C
Jaspal Singh v. Sardul Singh 1994 (3) Recent Revenue
Reports 106 (Punjab and Haryana); S.P.
Chengalvaraya Naidu (Dead) By LRs. v. Jagannath
(Dead) By LRs. and Others (1994) 1 SCC 1 : [1993] 3
Suppl. SCR 422; A.V. Papayya Sastry and Others v.
D Govt. of A.P. and Others (2007) 4 SCC 221 : [2007] 3
SCR 603; H.N. Jagannath and Others v. State of
Karnataka and Others (2018) 11 SCC 104 : [2008] 13
SCR 1 – referred to.
Case Law Reference
E
[2007] 5 SCR 904 held inapplicable Para 9
[2017] 1 SCR 1 held inapplicable Para 9
[1993] 3 Suppl. SCR 323 held inapplicable Para 9
[1976] 2 SCR 902 held inapplicable Para 9
F
[1993] 3 Suppl. SCR 422 referred to Para 19
[2007] 3 SCR 603 referred to Para 24
[2008] 13 SCR 1 referred to Para 26

G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8247
of 2009.
From the Judgment and Orders dated 28.01.2009 of the High
Court of Punjab & Haryana at Chandigarh in Regular Second Appeal
No.3205 of 2007 (O&M).
H
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 35
OTHERS

Siddhartha Luthra, Sr. Adv., Ms. Ruby Singh Ahuja, Vishal A
Gehrana, Ms. Akanksha Thapa, Akshay Agarwal, Ms. Shubangini Jain,
Yash Giri, M/s Karanjawala & Co., Advs. for the Appellant.
Narender Hooda, Sr. Adv., Gagan Gupta, Ms. Jyoti Mendiratta,
Shaurya Lamba, Ms. Neharika Modgil, Ravinder Pal Singh, Advs. for
the Respondents. B
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. The appeal challenges the judgment dated 28th January 2009
passed by the learned Single Judge of the High Court of Punjab and C
Haryana at Chandigarh in Regular Second Appeal No. 3205 of 2007
(O&M), thereby dismissing the appeal filed by the present appellant.
2. Brief facts giving rise to the present appeal are as under:
As per Kartar Singh, the original plaintiff (since deceased), the
grandfather of respondent Nos.1 and 2, he had entered into an agreement D
to sell the agricultural lands on 10th January 1993. As per the said
agreement, the sale deed was to be executed before 15th March 1994.
According to the plaintiff, a family settlement also took place between
him and the appellant-defendant in the month of November 1993. It is to
be noted that the plaintiff initially filed a suit for declaration against the
E
appellant-defendant being Civil Suit No. 141 of 1994 on 10th February
1994. The said suit was filed on the basis of the said family settlement
that took place in the month of November 1993. On the basis of the
application filed by the plaintiff, the said suit was dismissed as withdrawn
on 7th May 1994.
F
3. The plaintiff filed the present suit on 2nd June 1994 being Suit
No. 536 of 1994 seeking specific performance on the basis of alleged
agreement to sell dated 10th January 1993. The appellant-defendant
resisted the suit by filing written statement on 29th October 1994. In the
written statement, the appellant-defendant categorically denied the
existence and/or the execution of any agreement to sell. It was specifically G
contended by the appellant-defendant that the second suit was not
maintainable in view of withdrawal of the first suit. The plaintiff filed his
Replication on 14th November 1994 contending that the first suit for
declaration was filed only to avoid payment of stamp duty and registration
charges.
H
36 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 4. The learned Additional Civil Judge (Senior Division), Sunam
(hereinafter referred to as the “trial court”) vide judgment and decree
dated 6th August 1997 dismissed the suit for specific performance. Being
aggrieved thereby, the respondents, i.e., the legal representatives of the
plaintiff filed an appeal before the learned Additional District Judge,
Sangrur (hereinafter referred to as the “Appellate Court”). The Appellate
B
Court vide its judgment and decree dated 26th July 2007 allowed the
appeal and decreed the suit of the plaintiff for specific performance of
agreement to sell dated 10th January 1993. Being aggrieved thereby, the
appellant-defendant preferred an appeal before the High Court. The
High Court vide impugned judgment dated 28th January 2009 dismissed
C the appeal. Hence, the appellant-defendant has approached this Court.
5. We have heard Shri Sidharth Luthra, learned Senior Counsel
appearing on behalf of the appellant-defendant and Shri Narender Hooda,
learned Senior Counsel and Shri Gagan Gupta, learned counsel appearing
on behalf of the respondents-plaintiffs.
D 6. Shri Luthra, learned Senior Counsel submitted that the trial
court, finding that the plaintiff had suppressed the fact with regard to
filing of the earlier suit and further that the plaintiff had resiled from the
stand taken by him in the earlier litigation and taken a contrary stand,
had dismissed the suit. He submitted that however, the learned Appellate
E Court erroneously accepted the stand of the plaintiff in Replication that
the earlier suit was filed only in order to save the stamp duty and
registration charges and allowed the appeal.
7. Shri Luthra submitted that the perusal of the evidence of the
plaintiff would show that he had not stated anything regarding the earlier
F suit in his evidence. He submitted that, the learned Appellate Court has
failed to take into consideration that all the witnesses were closely
associated with the plaintiff and therefore, their evidence was not
trustworthy. He further submitted that the appellant-defendant had
specifically put up a case that she was a parda-nasheen lady and that
the plaintiff was her cousin and she had blind faith on him. He submitted
G that, taking disadvantage of such a blind faith, the plaintiff had taken her
thumb impression on some paper and used it to create an agreement to
sell. He further submitted that, as a matter of fact, an application for
partition was also filed by the appellant-defendant on 4th July 1994. He
therefore submitted that the appeal deserves to be allowed and the suit
H deserves to be dismissed.
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 37
OTHERS [B. R. GAVAI, J.]

8. Shri Luthra relied on various judgments of this Court in support A
of the submission that, since the act of the respondents-plaintiffs of
suppression of material facts amounted to fraud, he was not entitled to a
discretionary relief.
9. Shri Gupta, learned counsel appearing on behalf of the
respondents-plaintiffs submitted that all the three courts have concurrently B
found that the execution of the agreement to sell dated 10th January
1993 was duly established. He submitted that the trial court as well as
the Appellate Court and the High Court have also found that the appellant-
defendant has failed to establish the fact that the agreement to sell is a
result of fraud or misrepresentation. Having decided these issues in favour
of the respondents-plaintiffs, the trial court had erred in non-suiting the C
respondents-plaintiffs on a technical ground. Shri Gupta, relying on the
judgment of this Court in the case of Arunima Baruah v. Union of
India and Others1, submitted that, unless the suppression of filing of an
earlier suit is a material fact, such non-disclosure would not be fatal to
the case of the plaintiff. Relying on the judgment of this Court in the D
case of Harjas Rai Makhija (Dead) Through Legal Representatives
v. Pushparani Jain and Another2, he submitted that a mere concealment
or non-disclosure of relevant facts without intent to deceive or a bald
allegation of fraud without proof and intent to deceive, would not render
a decree obtained by a party as fraudulent. Shri Gupta submitted that in
the present case, the trial court itself has found that the plaintiff had E
failed to establish fraud and as such, the Appellate Court has rightly
allowed the appeal. He also relies on the judgment of this Court in the
case of Svenska Handelsbanken v. M/s Indian Charge Chrome and
Others3. Shri Gupta further relies on the judgment of this Court in the
case of Union of India v. M/s Chaturbhai M. Patel and Co.4 in support F
of his submission that fraud has to be proved beyond reasonable doubt.
10. Shri Gupta further submitted that the earlier suit for declaration
was filed on the claim that the respondents-plaintiffs were owner in
possession of the suit property on the basis of settlement deed, whereas
the second suit was filed on the basis of agreement to sell dated G
10th January 1993. He submitted that there is nothing on record to show

1
(2007) 6 SCC 120
2
(2017) 2 SCC 797
3
(1994) 1 SCC 502
4
(1976) 1 SCC 747 H
38 SUPREME COURT REPORTS [2022] 12 S.C.R.

A that the respondents-plaintiffs had any intention to defraud the appellant-
defendant.
11. Shri Hooda, learned Senior Counsel submitted that after the
Replication was allowed by the trial court, it became a part of the plaint.
As such, the respondents-plaintiffs had sufficiently proved as to the
B circumstances in which the earlier suit was filed. He therefore submitted
that the trial court had erred in non-suiting the plaintiff on a trivial ground.
Shri Hooda further submitted that after holding that the respondents-
plaintiffs had proved the agreement to sell, that the appellant-defendant
had failed to prove that any fraud was played on her and that the issue
under Order II Rule 2 of the Civil Procedure Code, 1908 (for short,
C ‘CPC’) was also in favour of the respondents-plaintiffs, the trial court
had grossly erred in dismissing the suit. He submitted that the said error
has been rightly corrected by the Appellate Court.
12. It is not in dispute that the plaintiff had filed a suit for declaration
being Civil Suit No. 141 of 1994. It will be relevant to refer to some of
D the averments in the said plaint:
1. “That previously the defendant was owner to the extent of
1/3rd share in land measuring 205 Kanal 4 Marla mustatil &
killa numbers as detailed in the heading of the plaint. Copy
of Jamabandi is attached herewith.
E
2. That previously the defendant was also owner to the extent
of 1/6 share in land measuring 139 Kanal 2 Marla and land
gair mumkin plot measuring 9 Kanal 2 Marla mustatil &
kiolla numbers as detailed in the heading of the plaint. Copy
of Jamabandi is attached herewith.
F
3. ………
4. That about three months ago and a family settlement took
place between the plaintiff and defendant and the land in
dispute fallen into the share of the plaintiff and the defendant
had delivered the possession of the suit property to the
G
plaintiff after visiting the spot. In this now the plaintiff is
continuous in possession over disputed property as owner
since last three month. The defendant has remained no
concern.

H
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 39
OTHERS [B. R. GAVAI, J.]

5. That the defendant was requested to admit the claim of the A
plaintiff and to get corrected the name of the plaintiff in
revenue record as owner but the defendant after dilly-
dallying the matter had refused yesterday to do so from
which cause of action accrued to the plaintiff against the
defendant.”
B
13. The said suit for declaration was filed on 10th February 1994.
It is to be noted that according to the respondents-plaintiffs, the alleged
agreement to sell was executed on 10th January 1993. As such it is prior
in point of time to the date of filing of the suit for declaration i.e.
10th February 1994. There is no mention with regard to the alleged
agreement to sell in the said plaint. C

14. The plaintiff filed an application on 7th May 1994 for withdrawal
of the said suit for declaration. Vide order of the same date, the trial
court, after recording the statement of the plaintiff that he did not want
to proceed with the case, dismissed the same as withdrawn.
D
15. Within a period of one month, the plaintiff filed the present suit
for specific performance. It will be relevant to refer to some of the
averments in the plaint:
“2. That the defendant agreed to sell the above said suit land to
the plaintiff for a consideration of Rs. 6,50,000/- and the defendant E
executed an agreement on dated 10.1.1994 at Patran in favour of
the plaintiff and received a sum of Rs. 50,000/- from the plaintiff
as earnest money and remaining amount was to be paid by the
plaintiff to the defendant at the time of sale deed before the Sub-
Registrar. The agreement was read over to the defendant who
after admitting the same to be correct put her thumb impressions F
in the presence of Lal Singh Lamberdar, Amolak Singh s/o Jagroop
Singh and Bhagwant Singh S/o Krishan Singh resident of Shadihari
and witnesses also attested the said agreement in the presence of
defendant. The plaintiff put his thumb impression in token of
correctness of the above said agreement. G
……….
15. That there is no litigation pending or decided between the
parties with regard to the agreement in question.”

H
40 SUPREME COURT REPORTS [2022] 12 S.C.R.

A 16. It could thus clearly be seen that, the present suit bases its
claim only on the agreement to sell dated 10th January 1993. Leave
aside there being any reference to the earlier suit, the plaintiff baldly
stated that there was no litigation pending or decided between the parties
with regard to the agreement in question. No doubt that it is sought to be
argued by the learned counsel for the respondents-plaintiffs that the
B
statement in paragraph (15) of the plaint is only with regard to the litigation
with respect to the agreement in question. It is stated that the said
paragraph does not mention litigation with regard to the land in question
and as such, there is no suppression of material fact.
17. After the suit for specific performance was filed, the written
C statement was filed by the appellant-defendant on 29th October 1994. In
the written statement, the appellant-defendant has stated thus:
“3. That the plaintiff file the said suit no.141 dt. 10.2.1994 in the
Court of P.C.S. Sub Judge First Class Sunam on 10.2.1994 which
was dismiss on 7.5.1994, but the plaintiff ending between the
D parties, on this ground only the suit of the plaintiff is liable to be
dismissed. In case any agreement executed earlier between the
parties, the plaintiff must mention about this in the suit, hence on
this alone ground the suit is liable to be dismissed.
4) That the plaintiff on 10.2.1994 in regard to the land filed Suit
E for pre-emption Right against the defendant in which the plaintiff
shown himself owner in possession of the land in question, the
said suit was consigned to record on 7.5.1994. In the said suit the
defendant did not mention anything in regard to the agreement
DT 10.1.1994.
F 5) That the plaintiff did not come before the Hon’ble Court in
clean hand and he has concealed the matter before the Hon’ble
Court, hence the suit is liable to be dismissed.
6) That the plaintiff and Defendant are having close relations with
each other. The plaintiff is uncle’s son of Defendant. Defendant
G has no brother, hence he treated plaintiff as her real brother and
believe upon him. Defendant is aged lady her eye sight is very
week and villager lady, she has no legal knowledge. The plaintiff
getting the wrongful gain of her believe with the intention to grab
her share has taken the thumb impression on the writing by
committing cheating and fraudulent means.”
H
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 41
OTHERS [B. R. GAVAI, J.]

18. After the appellant-defendant took objection with regard to A
the earlier suit being withdrawn, the plaintiff came with the Replication
application wherein, for the first time, he came up with a story that the
earlier suit was filed only to save the stamp duty and registration fee and
since the appellant-defendant became dishonest later on, the plaintiff
withdrew the suit. It is thus clear that the Replication was filed as an
B
after-thought only to cure the lacuna as pointed out in the written
statement. The trial court found that a person cannot be permitted to
assume inconsistent positions in the court of law to play fast and loose
and to blow hot and cold. The trial court, relying on the judgment of the
Punjab and Haryana High Court in the case of Jaspal Singh v. Sardul
Singh5, held that a party cannot be permitted to approbate and reprobate C
and resile from that position. The trial court has also found that the
explanation submitted by the plaintiff with regard to the circumstances
under which the earlier suit was filed, speaks volumes of the dishonest
intention of the plaintiff. The trial court also found that the plaintiff has
made an attempt to defraud the State of its revenue. The trial court
D
found that the past litigation has a direct bearing on the merits of the
present controversy. It observed that the plaintiff was duty bound to
plead the same in the plaint. The trial court found that under Order VII
Rule 1 (j) of the CPC (as applicable in Punjab), the statement with regard
to earlier litigation has to be made in the plaint. It will be relevant to refer
to the said provision: E
“ORDER VII
PLAINT
1. Particulars to be contained in plaint.
…………. F
(j) a statement to the effect that no suit between the same parties,
or between the parties under whom they or any of them claim,
litigating on the same grounds has been previously instituted or
finally decided by a Court of competent jurisdiction or limited
jurisdiction, and if so, with what results.” G
19. The trial court therefore, relying on the judgment of this Court
in the case of S.P. Chengalvaraya Naidu (Dead) By LRs. v.

5
1994 (3) Recent Revenue Reports 106 (Punjab and Haryana) H
42 SUPREME COURT REPORTS [2022] 12 S.C.R.

A Jagannath (Dead) By LRs. and Others6, dismissed the suit, though it
had answered the other issues in favour of the respondents-plaintiffs.
20. This well-reasoned judgment of the trial court came to be
reversed by the Appellate Court. Accepting the explanation of the
respondents-plaintiffs in Replication that the earlier suit was filed in order
B to save the registration fee and the stamp duty, the Appellate Court held
that the non-disclosure of the plaintiff about earlier litigation in the plaint
but clarifying it later in the Replication, was not such a crucial point on
the basis of which he could be non-suited in toto.
21. Though the suit was dismissed by the trial court and decreed
C by the Appellate Court, the High Court observed thus:
“The learned trial Court came to the conclusion that the
agreement to sell and the default on the part of the appellant has
been established and therefore directed the agreement to be
enforced by way of execution of the sale deed.
D In appeal, the findings of the learned trial Court were
affirmed.”
22. It could thus be seen that there is total non-application of mind
by the High Court. The High Court did not even care to refer to the
grounds raised in the appeal with regard to the effect of non-disclosure
E of filing and withdrawal of the earlier suit. The High Court dismissed the
suit on the basis that it arises out of the concurrent findings of fact and
no question of law is involved.
23. What would be the effect of suppression of earlier proceedings
has been considered by this Court in the case of S.P. Chengalvaraya
F Naidu (supra). The Court observed thus:
“5. The High Court, in our view, fell into patent error. The short
question before the High Court was whether in the facts and
circumstances of this case, Jagannath obtained the preliminary
decree by playing fraud on the court. The High Court, however,
G went haywire and made observations which are wholly perverse.
We do not agree with the High Court that “there is no legal duty
cast upon the plaintiff to come to court with a true case and prove
it by true evidence”. The principle of “finality of litigation” cannot
be pressed to the extent of such an absurdity that it becomes an
6
H (1994) 1 SCC 1
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 43
OTHERS [B. R. GAVAI, J.]

engine of fraud in the hands of dishonest litigants. The courts of A
law are meant for imparting justice between the parties. One who
comes to the court, must come with clean hands. We are
constrained to say that more often than not, process of the court
is being abused. Property-grabbers, tax-evaders, bank-loan-
dodgers and other unscrupulous persons from all walks of life
B
find the court-process a convenient lever to retain the illegal gains
indefinitely. We have no hesitation to say that a person, who’s
case is based on falsehood, has no right to approach the court. He
can be summarily thrown out at any stage of the litigation.
6. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud on C
the court. A fraud is an act of deliberate deception with the design
of securing something by taking unfair advantage of another. It is
a deception in order to gain by another’s loss. It is a cheating
intended to get an advantage. Jagannath was working as a clerk
with Chunilal Sowcar. He purchased the property in the court D
auction on behalf of Chunilal Sowcar. He had, on his own volition,
executed the registered release deed (Ex. B-15) in favour of
Chunilal Sowcar regarding the property in dispute. He knew that
the appellants had paid the total decretal amount to his master
Chunilal Sowcar. Without disclosing all these facts, he filed the
suit for the partition of the property on the ground that he had E
purchased the property on his own behalf and not on behalf of
Chunilal Sowcar. Non-production and even non-mentioning of the
release deed at the trial is tantamount to playing fraud on the
court. We do not agree with the observations of the High Court
that the appellants-defendants could have easily produced the F
certified registered copy of Ex. B-15 and non-suited the plaintiff.
A litigant, who approaches the court, is bound to produce all the
documents executed by him which are relevant to the litigation. If
he withholds a vital document in order to gain advantage on the
other side then he would be guilty of playing fraud on the court as
well as on the opposite party.” G

24. Again in the case of A.V. Papayya Sastry and Others v.
Govt. of A.P. and Others7, this Court observed thus:

7
(2007) 4 SCC 221 H
44 SUPREME COURT REPORTS [2022] 12 S.C.R.

A “21. Now, it is well-settled principle of law that if any judgment
or order is obtained by fraud, it cannot be said to be a judgment or
order in law. Before three centuries, Chief Justice Edward Coke
proclaimed:
“Fraud avoids all judicial acts, ecclesiastical or temporal.”
B 22. It is thus settled proposition of law that a judgment, decree or
order obtained by playing fraud on the court, tribunal or authority
is a nullity and non est in the eye of the law. Such a judgment,
decree or order—by the first court or by the final court—has to
be treated as nullity by every court, superior or inferior. It can be
C challenged in any court, at any time, in appeal, revision, writ or
even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley [(1956)
1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502 (CA)] Lord
Denning observed : (All ER p. 345 C)
D “No judgment of a court, no order of a Minister, can be allowed
to stand if it has been obtained by fraud.”
24. In Duchess of Kingstone, Smith’s Leading Cases, 13th Edn.,
p. 644, explaining the nature of fraud, de Grey, C.J. stated that
though a judgment would be res judicata and not impeachable
E from within, it might be impeachable from without. In other words,
though it is not permissible to show that the court was “mistaken”,
it might be shown that it was “misled”. There is an essential
distinction between mistake and trickery. The clear implication of
the distinction is that an action to set aside a judgment cannot be
F brought on the ground that it has been decided wrongly, namely,
that on the merits, the decision was one which should not have
been rendered, but it can be set aside, if the court was imposed
upon or tricked into giving the judgment.
25. It has been said : fraud and justice never dwell together (fraus
et jus nunquam cohabitant); or fraud and deceit ought to benefit
G
none (fraus et dolus nemini patrocinari debent).
26. Fraud may be defined as an act of deliberate deception with
the design of securing some unfair or undeserved benefit by taking
undue advantage of another. In fraud one gains at the loss of
another. Even most solemn proceedings stand vitiated if they are
H
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 45
OTHERS [B. R. GAVAI, J.]

actuated by fraud. Fraud is thus an extrinsic collateral act which A
vitiates all judicial acts, whether in rem or in personam. The
principle of “finality of litigation” cannot be stretched to the extent
of an absurdity that it can be utilised as an engine of oppression
by dishonest and fraudulent litigants.”
25. As observed, there is an essential distinction between mistake B
and trickery. In the present case, it is sought to be argued on behalf of
the respondents-plaintiffs that the averment in paragraph (15) of the
plaint was with regard to a lis on the basis of the agreement. It is submitted
that the earlier suit was not based on the agreement and as such, there
was no suppression. We find the argument to be unsustainable. We are
of the view that such a statement was made as a trickery so as to obtain C
the judgment by misleading the court.
26. In the case of H.N. Jagannath and Others v. State of
Karnataka and Others8, the land owners filed civil suits one after other
in respect of acquired lands. The said suits were withdrawn without
liberty to approach the court again. Simultaneously, land owners also D
filed writ petitions challenging the acquisition on different grounds. The
same were dismissed. Thereafter, the land owners submitted an
application to the State Government for denotification of the land. Since
it was not considered, one more writ petition came to be filed in which a
direction was issued for consideration of the representation. The said E
representation was rejected in the year 1992. The land owners filed
another writ petition questioning the rejection of its representation. The
same was also dismissed. Thereafter, six more writ petitions were filed
again questioning the validity of acquisition proceedings and yet again,
they were dismissed. In an intra-court appeal, the Division Bench
relegated the parties to the civil court to work out their remedies. Criticizing F
the approach of the Division Bench, this Court observed thus:
“14. It is not in dispute that the property in question along with
other properties was acquired by the BDA in accordance with
law by issuing notifications under Sections 17(1) and 19(1) of the
BDA Act as far back as in the year 1977 and in the year 1979. G
BDA has formed and allotted the sites. Most of the allottees have
constructed houses and are residing peacefully. However,
Respondent 4 still contends that possession has remained with it
and therefore the acquisition needs to be set aside and that the
8
(2018) 11 SCC 104 H
46 SUPREME COURT REPORTS [2022] 12 S.C.R.

A land should be denotified. As detailed supra, Respondent 4 has
already approached the civil court thrice and High Court on six
occasions. Whenever the suits are withdrawn, Respondent 4 has
not sought any liberty to approach the civil court once again. Thus,
it was not open for Respondent 4 to approach the civil court
repeatedly for the very same reliefs. Consistently, the civil court
B
on three occasions has negatived the contention of the appellant.
15. Even when Respondent 4 approached the High Court of
Karnataka by filing the writ petitions and writ appeals, it has failed.
Futile attempts have been made by Respondent 4 only to see that
the allottees are harassed and to keep the litigation pending. After
C the final notification, an award was passed and compensation was
deposited. Possession was taken and the same was evidenced by
the panchnama prepared as far back as on 23-9-1986. The
notification under Section 16(2) of the Land Acquisition Act was
issued on 20-1-1987 disclosing the factum of taking possession of
D the land in question. Attempt made by Respondent 4 for getting
the disputed land denotified has also failed as far back as on 15-1-
1993, when the State Government had rejected the representation
of Respondent 4 seeking denotification. The writ petition filed by
Respondent 4 challenging such order of dismissal of the
representation was also dismissed. Despite the same, Respondent
E 4 is pursuing the matter by filing writ petition after writ petition. It
is a clear case of abuse of process of law as well as the court.
16. We do not find any reason to interfere in the finding of fact
rendered by the learned Single Judge that possession was taken
by BDA on 23-9-1986. There is nothing to be adjudicated further
F in respect of the title or possession of the property. The title as
well as the possession of the property has vested with BDA for
about more than 30 years prior to this day and sites were formed
and allotted to various persons including the appellant herein. In
the light of such voluminous records and having regard to the fact
G that Respondent 4 has been repeatedly making futile attempts by
approaching the courts of law by raising frivolous contentions, the
Division Bench ought not to have granted liberty to Respondent 4
to approach the civil court once again for the very same relief, for
which it has failed earlier. In view of this, the learned counsel for
the appellant is justified in contending that the Division Bench has
H
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 47
OTHERS [B. R. GAVAI, J.]

completely erred in reviving the dispute which had long been given A
a legal quietus after a series of litigations. The judgment of the
Division Bench, if allowed to stand, will unsettle the settled state
of affairs involving hundreds of allottees of sites who have
constructed the houses and are residing therein. The impugned
judgment of the Division Bench virtually sets at naught a number
B
of judgments rendered by the civil court as well as the High Court
in the very matter (and was given without any reason much less a
valid reason).
17. ……..
18. …….. C
19. Having regard to the discussion made supra, in our considered
opinion, it is a clear case of contempt committed by Respondent 4
by repeatedly approaching the courts of law for almost the same
relief which was negatived by the courts for three decades.
However, we decline to initiate contempt proceedings and to D
impose heavy costs, under the peculiar facts and circumstance of
this case.”
27. We find that the Appellate Court has grossly erred in reversing
the judgment and decree of the trial court which had dismissed the suit
taking into consideration the conduct of the respondents-plaintiffs. E
28. Insofar as the reliance placed by Shri Gupta on the judgment
of this Court in the case of Arunima Baruah (supra) is concerned, the
Court observed thus:
“12. It is trite law that so as to enable the court to refuse to
exercise its discretionary jurisdiction suppression must be of F
material fact. What would be a material fact, suppression whereof
would disentitle the appellant to obtain a discretionary relief, would
depend upon the facts and circumstances of each case. Material
fact would mean material for the purpose of determination of the
lis, the logical corollary whereof would be that whether the same
G
was material for grant or denial of the relief. If the fact suppressed
is not material for determination of the lis between the parties, the
court may not refuse to exercise its discretionary jurisdiction. It is
also trite that a person invoking the discretionary jurisdiction of
the court cannot be allowed to approach it with a pair of dirty
H
48 SUPREME COURT REPORTS [2022] 12 S.C.R.

A hands. But even if the said dirt is removed and the hands become
clean, whether the relief would still be denied is the question.”
29. It could thus be seen that this Court has held that what would
be a ‘material fact’ would depend upon the facts and circumstances of
each case. It has also been held that ‘material fact’ would mean material
B for the purpose of determination of the lis. It has also been held that a
person invoking the discretionary jurisdiction of the court cannot be
allowed to approach it with a pair of dirty hands. In the present case,
filing of the earlier suit and withdrawal thereof without liberty to file
another suit was a material fact. Undisputedly, the respondents-plaintiffs
had failed to approach the court with clean hands. As such, we find that
C the said judgment would be of no assistance to the case of the respondents-
plaintiffs.
30. Insofar as the judgment in the case of Harjas Rai Makhija
(supra) is concerned, in the facts of the said case, the Court held that
though the appellant Makhija had an opportunity to prove the allegation
D of fraud when he filed an application under Order XLI Rule 27 of the
CPC, he missed that opportunity right up to this Court. He took a second
shot at alleging fraud and filed another suit. However, he failed in the
trial court as well as the High Court as he could not produce any evidence
to prove that fraud was committed by the respondent when she obtained
E the decree dated 4th October 1999. As such, the said judgment would
not be applicable to the facts of the present case.
31. Insofar as the judgment in the case of M/s Chaturbhai M.
Patel and Co. (supra) is concerned, it was the case of defendant that
some amount of fraud had been played on the defendant by the collusion
F of the plaintiff with his father. This Court, concurring with the findings of
the High Court, found that the circumstances relied on by the appellant
were not at all conclusive to prove the case of fraud. The present case
is a case of suppression of a material fact with regard to filing and
withdrawal of earlier proceedings. As such, the said judgment would not
be applicable to the facts of the present case.
G
32. Similarly, the facts in the case of Svenska Handelsbanken
(supra) were also totally different and as such, reliance on the said
judgment is also of no assistance to the case of the respondents-plaintiffs
in the present case.

H
YASHODA (ALIAS SODHAN) v. SUKHWINDER SINGH AND 49
OTHERS [B. R. GAVAI, J.]

33. In that view of the matter, we find that the Appellate Court A
has grossly erred in reversing the well-reasoned judgment and decree of
the trial court. As already observed hereinabove, the judgment of the
High Court is passed without application of mind. The High Court has
gone on a premise that the trial court had decreed the suit and the
Appellate Court has dismissed the appeal. This is factually erroneous.
B
34. In the result, we pass the following order:
(i) The appeal is allowed;
(ii) The judgment and decree dated 26th July 2007 passed by
the Appellate Court in Civil Appeal No. 191 of 2006 and
the judgment passed by the High Court dated 28th January C
2009 in R.S.A. No. 3205 of 2007 (O&M) are quashed and
set aside; and
(iii) The judgment and decree dated 6th August 1997 passed by
the trial court in Suit No. 536 of 1994 thereby dismissing
the suit of the respondents-plaintiffs is upheld. D
35. Pending application(s), if any, shall stand disposed of in the
above terms. No order as to costs.

Nidhi Jain Appeal allowed.
(Assisted by : Shashwat Jain, LCRA)
E

F

G

H